Continuation of the Appeal Procedure after Reconsideration of a Decree by the Debt Collection Office

Facts

The Debt Collection Office of Root issued a wage garnishment against Sch. on 17 June 1999. In the garnishment certificate dated 27 September 1999, it set the garnishable wage quota at CHF 2,687.45 per month, but reduced it to CHF 1,949.70 per month with a decree dated 8 October 1999, after it had reconsidered its decree based on a notification from the debtor's employer. The appeal filed by Sch. against the decree of 27 September 1999 was dismissed as moot by the President of the District Court III of Lucerne-Land. Sch. appealed the decision of the Debt Collection and Bankruptcy Commission of the High Court of the Canton of Lucerne, by which his appeal was dismissed, to the Federal Supreme Court.

Considerations

The Federal Supreme Court upholds the appeal. Art. 17 para. 4 DEBA corresponds in content to Art. 58 APA, according to which the lower instance can reconsider the contested decree until its statement of position. The rule of Art. 58 para. 3 APA, which instructs the appeal instance to continue the treatment of the appeal insofar as it has not become moot due to the new decree, reflects the general principle of logic that a legal remedy becomes moot to the extent that the requested claims have been granted.

If the new decree only partially grants the requested claims, it is neither in the interest of expediting the proceedings nor of procedural economy to consider the appeal as a whole as…